Citation Nr: 0930701
Decision Date: 08/17/09 Archive Date: 08/27/09
DOCKET NO. 08-05 667 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to a rating in excess of 30 percent for
gastroesophageal reflux disease.
REPRESENTATION
Appellant represented by: Oregon Department of Veterans'
Affairs
ATTORNEY FOR THE BOARD
Benjamin Diliberto, Associate Counsel
INTRODUCTION
The Veteran had active service from April 1968 to May 1969.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a November 2005 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in San Diego, California, that denied the benefit sought on
appeal. The Veteran appealed that decision and the case was
referred to the Board for appellate review.
FINDING OF FACT
The Veteran's gastroesophageal reflux disease is not
manifested by symptoms of pain, vomiting, material weight
loss and hematemesis or melena with moderate anemia; or other
symptom combinations productive of severe impairment of
health
CONCLUSION OF LAW
The criteria for a disability rating in excess of 30 percent
for gastroesophageal reflux disease have not been met.
38 U.S.C.A. §§ 1155, 5103, 5103A (West 2002); 38 C.F.R.
§§ 4.1-4.14, 4.114, Diagnostic Code 7307-7203 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Before addressing the Veteran's claim on appeal, the Board is
required to ensure that the VA's "duty to notify" and
"duty to assist" obligations have been satisfied. See
38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159
(2007). The notification obligation in this case was met by
way of letters from the RO to the Veteran dated July 2005 and
August 2008. See Quartuccio v. Principi, 16 Vet. App. 183
(2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004);
Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on
other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v.
Nicholson, 19 Vet. App. 473 (2006).
The Board acknowledges a recent decision from the United
States Court of Appeals for Veterans Claims (Court) that
provided additional guidance on the content of the notice
that is required under 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b) in claims involving increase compensation
benefits. See Vazquez-Flores v. Peake, 22 Vet. App. 37
(2008). In Vazquez-Flores, the Court found that, at a
minimum, adequate VCAA notice requires that VA notify the
claimant that, to substantiate an increased rating claim: (1)
the claimant must provide, or ask VA to obtain, medical or
lay evidence demonstrating a worsening or increase in
severity of the disability and the effect that worsening has
had on the claimant's employment or daily life; (2) if the
diagnostic code under which the claimant is rated contains
criteria necessary for entitlement to a higher disability
rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has had on
the claimant's employment and daily life (such as a specific
measurement or test result), the Secretary must provide at
least general notice of that requirement to the claimant; (3)
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant diagnostic codes; and (4) the notice
must also provide examples of the types of medical and lay
evidence that the claimant may submit (or ask VA to obtain)
that are relevant to establishing entitlement to increase
compensation. Id. at 43-44. An August 2008 letter to the
Veteran satisfied this notice requirement.
The RO also provided assistance to the Veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances of this case. In
addition, the Veteran and his representative have not made
the RO or the Board aware of any additional evidence that
needs to be obtained in order to fairly decide this appeal
and have not argued that any errors or deficiencies in the
accomplishment of the duty to notify or the duty to assist
have prejudiced the Veteran in the adjudication of his
appeal. Therefore, the Board finds that the RO has satisfied
the duty to notify and the duty to assist and will proceed to
the merits of the Veteran's appeal.
The Veteran contends that the current evaluation for his
gastroesophageal reflux disease (GERD) does not accurately
reflect the severity of that condition. Disability
evaluations are determined by evaluating the extent to which
a veteran's service-connected condition adversely affects his
ability to function under the ordinary conditions of daily
life, including employment, by comparing his symptomatology
with the criteria set in the Schedule for Rating
Disabilities. 38 U.S.C.A. § 1155, 38 C.F.R. § 4.1. Separate
diagnostic codes identify various disabilities and the
criteria for specific ranges. VA has a duty to acknowledge
and consider all regulations which are potentially applicable
through the assertions and issues raised in the record, and
to explain the reasons and bases for its conclusion.
Schafrath v. Derwinksi, 1 Vet. App. 589 (1991). If two
disability evaluations are potentially applicable, the higher
evaluation will be assigned if the disability picture more
nearly approximates the criteria required by that evaluation.
Otherwise, the lower rating will be assigned. 38 C.F.R.
§ 4.1. After careful consideration of the evidence, any
reasonable doubt remaining will be resolved in favor of the
veteran. 38 C.F.R. § 4.3. While the veteran's entire
history is reviewed when assigning a disability evaluation,
where service connection has already been established, and an
increase in the disability rating is at issue, it is the
present level of disability that is of primary concern.
The Veteran claims entitlement to a rating evaluation in
excess of 30 percent for his gastroesophageal reflux disease
(GERD). The Veteran first claimed entitlement to service
connection for a stomach disorder in February 1970. In an
April 1970 rating decision the RO granted service connection
for a psychophysiological gastrointestinal reaction and
assigned a 10 percent rating effective from May 1969. In
April 1975, after a VA examination, the RO determined that
the Veteran's gastrointestinal condition no longer supported
a compensable rating and a noncompensable rating was assigned
from July 1975. In April 2005 the Veteran requested an
increased rating for that condition, stating that his
symptoms had worsened. A November 2005 rating decision
granted the Veteran an increased rating and assigned a 30
percent evaluation effective from April 2005. The Veteran
submitted a Notice of Disagreement with this rating in
November 2006 and a Substantive Appeal (VA Form 9) in
February 2008.
The evidence in this case includes private treatment records
and VA treatment records. Treatment records from Pacific
Arrhythmia Consultants and the Salem Clinic show that the
Veteran was seen only on a few occasions and noted having
GERD for which he was taking Protonix. Other records showed
that the Veteran had chest pain, but this was attributed to a
cardiovascular etiology. A VA examination was conducted in
October 2005 and indicated that the Veteran was vague in
describing his symptoms, but that he did describe symptoms
including epigastric burning and pain, substernal chest pain,
regurgitation, gurgling and growling. A GI series was
negative and showed no evidence of gastroesophageal reflux.
Another VA examination was conducted in February 2007.
During that examination the Veteran reported daily heartburn
improved when medication is taken. No other symptoms were
noted. During the Veteran's most recent VA examination in
April 2009 the Veteran reported that his reflux had continued
and worsened over time. The Veteran currently uses 20 mg of
Prilosec twice a day to control the condition. He reported
nausea, but only rare vomiting. Additionally, the Veteran
denied constipation, diarrhea or unusual bowel habits. The
Veteran's weight loss has been stable, but he does have a
history of gastritis. The examiner determined that the
Veteran's condition is controlled 80 percent of the time with
some mild nausea. At night the Veteran is required to sleep
in a semi-upright position so that he can rest better.
Examination of the abdomen revealed no tenderness, guarding
or rebound. Additionally, there was no evidence of
organomegaly or mass. The examiner noted that the Veteran's
condition is likely to be aggravated by strenuous lifting,
pushing or pulling, but that it does not impair him from
doing moderate, light or sedentary activities.
Social Security Administration records have also been
obtained in connection with this claim, but those records
pertain mainly to the Veteran's back condition and mood
disorders and not to the Veteran's service-connected GERD.
VA regulations provide that there are diseases of the
digestive system, particularly within the abdomen which,
while differing in the site of pathology, produce a common
disability picture characterized in the main by varying
degrees of abdominal distress or pain, anemia and
disturbances in nutrition. Consequently, certain coexisting
diseases in this area, as indicated under the instruction
under the title "Diseases of the Digestive System," do not
lend themselves to distinct and separate disability
evaluations without violating the fundamental principle
related to pyramiding as outlined in 38 C.F.R. § 4.14. See
38 C.F.R. § 4.113 (2008). Ratings under Diagnostic Codes
7301 to 7329, inclusive, 7331, 7342 and 7345 to 7348,
inclusive, will not be combined with each other. A single
evaluation will be assigned under the diagnostic code which
reflects the predominant disability picture, with elevation
to the next higher evaluation where the severity of the
overall disability warrants such elevation. 38 C.F.R.
§ 4.114.
The Veteran service-connected gastroesophageal reflux disease
(GERD) is currently rated as 30 percent disabling under
38 C.F.R. § 4.114, Diagnostic Code 7346. Under this
Diagnostic Code, symptoms of pain, vomiting, material weight
loss and hematemesis or melena with moderate anemia; or other
symptom combinations productive of severe impairment of
health warrants a 60 percent evaluation. A 30 percent
evaluation is warranted where there is persistently recurrent
epigastric distress with dysphagia, pyrosis and
regurgitation, accompanied by substernal or arm or shoulder
pain, productive of considerable impairment of health.
Finally, a 10 percent evaluation is warranted with two or
more of the symptoms for the 30 percent evaluation of less
severity. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2008).
After careful review of the evidence, the Board concludes
that the Veteran's gastroesophageal reflux disease does not
meet the criteria necessary for the next higher rating of 60
percent under Diagnostic Code 7346. In this regard, the
evidence of record, including VA examination reports
indicates that the Veteran's GERD has been manifested by
nausea and other symptoms productive of considerable
impairment of health. However, there is no evidence of pain,
vomiting, material weight loss and hematemesis or melena with
moderate anemia; or other symptom combinations productive of
severe impairment of health.
The Board acknowledges that the Veteran sincerely believes
that his GERD warrants a rating in excess of 30 percent.
However, the Board notes that as a layman, the Veteran is not
competent to provide a medical opinion on the diagnosis or
etiology of a medical condition. Espiritu v. Derwinski, 2
Vet. App. 492 (1992). Consequently, such assertions cannot
constitute evidence upon which to grant a claim for an
increased evaluation. Lathan v. Brown, 7 Vet. App. 359, 365
(1995).
The Board has considered the applicability of additional
diagnostic codes potentially applicable to the Veteran's
service-connected GERD. However, no higher or separate
evaluation is warranted under any of these diagnostic codes.
In this regard, the Board observes that higher evaluation
under Diagnostic Code 7308 is not warranted as there is no
evidence of diarrhea or weight loss.
In exceptional cases, extraschedular ratings may be assigned.
See 38 C.F.R. § 3.321(b)(1). The Board has considered
assignment of an extra-schedular evaluation but the record
does not show that the Veteran's appealed disability, alone,
has required frequent hospitalization, or that manifestations
of that disability exceed those contemplated by the schedular
criteria. Therefore, assignment of extra-schedular
evaluations in this case is not in order. Floyd v. Brown, 9
Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337
(1996).
A preponderance of the evidence is against a rating in excess
of 30 percent. Therefore the benefit-of-the-doubt doctrine
does not apply and an increased rating must be denied. See
38 U.S.C.A. § 5107(b).
ORDER
Entitlement to a rating in excess of 30 percent for
gastroesophageal reflux disease is denied.
____________________________________________
V. L. JORDAN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs